188 Mo. 381 | Mo. | 1905
This is a prosecution by information filed by the. assistant prosecuting attorney of the St. Louis Court of Criminal Correction, charging the defendant, as manager of the Banner Rubber Company, with having, on the 19th of January, 1904, in the city of St. Louis, wilfully and unlawfully suffered to be emitted and discharged from the smokestack ór chimney of a certain building belonging to said Banner Rubber Company, and situated at the corner of Bittner and Kendrick streets in said city, and within the corporate limits of said city, dense smoke into the open air, in violation of “An act to prohibit the discharge into open air of dense smoke,” approved March 21, 1901. The information was duly verified. The defendant was arrested, duly arraigned and pleaded not guilty.
The appeal was sent to this court because the defendant challenged the constitutionality of the Dense Smoke Act of 1901. Since the filing of this appeal in this court the constitutionality of the law of March 21, 1901, which makes the emission or discharge into the open air of dense smoke within the corporate limits of cities of this State which now have or may hereafter have a population of one hundred thousand inhabitants, a misdemeanor, has been affirmed in State v. Tower, 185 Mo. 79. The decision in that case as to the constitutionality of the said act is no longer controverted, but as the appeal was properly lodged in this court at the time it was taken, the jurisdiction of this court of this appeal is clear. The only point remaining for consideration is as to the action of the court in overruling the defendant’s demurrer to the State’s evidence. The defendant contends that as he was charged as a manager of said corporation, that there was no proof that he bore that relation to the said company, and therefore he was entitled to acquittal. By the terms of the act upon which this prosecution is bottomed it is provided that, “The owners, lessees, occupants, managers or agents of any building, establishment or premises from which dense smoke is so emitted or discharged, shall be deemed guilty of a misdemean- or.”
On the part of the State Wm. P. Hazzard testified he was the treasurer of the said Banner Rubber Company and corporation, that he knew Mr. Hemenover, the defendant. Asked what connection Mr. Hemenover had with the company, he answered, “He is a stockholder, a director, and the secretary of the company, and has his office in the factory at Baden, North St. Louis; he attends to the buying, and has charge of the manufacturing and looks after the buying of goods, etc.” Asked who is the president of the company, an
Learned counsel for the defendant in their brief state that Mr. Hazzard in his examination answered that the president was W. H. Burritt, hut the record certified to this court shows that the direct question was put to Mr. Hazzard, “Who is the president?” and he answered, “Mr. Hemenover has that title;” and the defendant himself in answer to the question, “Arn’t you known as the president?” answered, “By courtesy, yes, sir.”
If the original hill of exceptions was incorrectly certified to this court, it was the duty of counsel to have suggested a diminution of the record and caused the
The effort of the defendant in this case was to show that he was not the exclusive manager of the said plant, but it does not follow that, because other officers also manage said plant, the defendant, who was a director and secretary of the company, and who according to his own evidence had charge of the manufacturing and control of other departments except the office room, was not thereby a manager within the meaning of the act. If so, then all that the company would have to do to escape responsibility for the violation of this act would be to decline to name any one person as manager, and then all the directors and officers would be exempt, though they jointly manage the plant.
We think there was evidence from which the court was justified in finding that the defendant was the principal manager, at least, of this establishment, and that he acted as such.
The conclusion we have reached we regard as in harmony with the analogies of the law in similar cases.
Our conclusion is that the demurrer to the evidence was properly overruled and that the conviction must stand, and it is accordingly so ordered.